On Active Services in Peace and War

PART ONE

ON MANY FRONTS

CHAPTER I

Attorney for the Government

THEODORE ROOSEVELT, at the end of 1905, was in full course. A year before, he had been triumphantly elected President in his own right; he was now preparing for a good fight with the Fifty-ninth Congress on railroad rates, pure food, and other issues of his Square Deal. His popularity was enormous; his joyous self-confidence was at its peak. In kinetic response to his personal preaching of a new morality, the country was alive to the meaning of righteous government as it had not been for generations.

The President himself carried the banner for new reforms. Meanwhile he faced a problem in consolidating gains already made. His first administration had seen two legal events that opened the door to more aggressive law enforcement: the Supreme Court’s antitrust decision in the Northern Securities case, and the passage of the Elkins Act of 1903 against railroad rebates. To get the full value of these new opportunities, the President needed lawyers; he had a vigorous and effective Attorney General in W. H. Moody, but among the law officers in the lower echelons of the federal Government there was room for improvement. In over two years no important conviction had been obtained under the Elkins Act, and it was common knowledge that rebates continued. T.R. wanted the legal help of some of my type of men.

In December, 1905, Stimson was invited to Washington to see the President. His principal previous connection with Theodore Roosevelt had been as a fellow member of the Boone & Crockett Club of New York, and he traveled to the capital with his mind turned to problems of bear hunting. Calling on his former senior partner, Secretary of State Root, he learned what the President wanted, and a few minutes later, sitting in the White House, he was listening to the most commanding natural leader he ever knew. The President had a job for him: would he serve as United States Attorney for the Southern District of New York?

The call of Theodore Roosevelt was irresistible, and Stimson at once accepted. The President said he would discuss the matter with the patronage boss of New York, Senator Tom Platt, and see if it could be arranged. There was plenty of time; the term of the present incumbent had still six weeks to run.

On January 11, 1906, having heard nothing further from the White House, Stimson read in the morning papers that his appointment had been announced the day before by the President. Apparently Senator Platt had given his consent, for the appointment was readily confirmed, and on February 1 Stimson took office. It was his first public office; it came unsought, as did every one of his later appointments. And in 1947 it was clear to him that this first decision was the one from which all his later opportunities developed. On February 1, 1906, he crossed forever the river that separates private citizens from public men.

The law of the United States—the federal law—is applied and interpreted by a hierarchy of courts ranging from the Supreme Court in Washington through the Circuit Courts of Appeals to the District Courts. But the law is enforced by prosecutors; no judge, however upright, can personally apprehend a lawbreaker. When Stimson became United States Attorney for the Southern District of New York, he became the chief law-enforcement officer of the American national Government in the most populous and important district in the country. At any time such office presents a challenge to the honor and ability of a member of the bar. And it happened that when Stimson took office there were two circumstances which gave the challenge special point.

One was the nature of the laws now requiring enforcement. In older and simpler times the function of the United States Attorney had been one that a good lawyer could faithfully execute with half his time and almost no assistants. It had been so executed, with distinction, by Elihu Root less than a generation before—it was the first of many parallels between Mr. Root and his junior partner that both were thirty-eight when they assumed this office. But now, in 1906, the United States was asserting its latent strength; its lawyers were expected to do successful battle with the corporate giants of the time. No longer would it be the major business of the United States Attorney to pursue petty smugglers and violators of the postal laws.

And it happened that in the years since Mr. Root’s incumbency the office of the federal attorney had become less and less competent to deal with cases of such magnitude. Until just before Stimson’s appointment the law provided that the United States Attorney might keep as his reward a generous proportion of the moneys recovered in customs cases by his endeavors, so that in Southern New York the job was reported to be worth $100,000 a year. But the incumbents, though generally honorable men, had hardly been of the stature to command any such sum in private practice, and it had become the habit of the Attorney General to retain private lawyers whenever he had a case of unusual importance or difficulty to press in the lower courts; his official subordinates were considered no match for the eminent counsel who acted for the defense in major cases.

Stimson was hired (at $10,000 a year) to do two things—first, to make war on violators of the federal law, especially on the new front of great corporate transgression, and second, to reorganize his office in such fashion that he himself, with his own official assistants, would try all important cases. Although he began his court battles before his reorganization of the office was complete, his final successes at the bar depended in so great a degree upon the men he gathered around him that we shall do well to look first at this question of building a team.

When Stimson took office, he had eight assistants at an aggregate salary of $22,000 a year. This total was less than what he himself had earned in 1905 as a successful but not particularly outstanding young lawyer. It was therefore not surprising to him to find that, with two or three exceptions, the men in his new office were not of very high caliber—competent and ambitious lawyers were not attracted by the Government’s salary scale.

It was not easy at first to see what could be done about it. It might be possible to increase appropriations somewhat (and an increase of 50 per cent was in the end obtained), but even a double rate would hardly attract established lawyers earning five or ten times as much as the best offer Stimson could make. Nor was it likely that among New York’s practicing attorneys there was much unrecognized and underpaid talent which could be attracted by a government job—at the New York bar real ability was quickly recognized and rewarded.

Or was it? Granted that few good men over thirty-five were earning less than $10,000, what about the men even younger? Stimson’s mind turned back to his own years as a junior—he remembered the time in 1893 when a guaranteed salary of $2,000 had permitted him, after five years of waiting, to marry and support his wife. There were underpaid lawyers of high quality in New York, and he knew where to find them; they were the men fresh out of law school who worked as juniors in the big downtown offices. They knew little about prosecution, it was true, but they knew about as much as he did himself—and as much as most lawyers in private practice would know; perhaps indeed they would know more, for the things they had learned about criminal law in classrooms would not have faded from their minds as from those of their seniors. He would raid the law firms—better yet, he would canvass the law schools and offer his jobs to men whose brains were guaranteed by their deans. Perhaps with these bright young men he could stretch his funds a long way; perhaps they would feel, as he did, the challenge of the job and take its opportunities in partial payment.

And that was the way it turned out, although it took months to find and win the men he wanted. He wrote to the law school deans; he talked to his contemporaries to find out if they knew and would recommend to him particularly likely youngsters; he added his own zealous arguments to the general appeal of a chance to fight under the banner of T.R. and reform. When he got through he had a team of assistants tender in years but equal in their combined talents to any office anywhere, public or private. In later years Stimson always claimed for himself the ability to judge and choose men, and he was prepared to rest this claim with a recapitulation of the names of his chief assistants when he was United States Attorney for the Southern District. Felix Frankfurter went on to the United States Supreme Court and Thomas D. Thacher to the highest court of New York State; Winfred Denison’s brilliant career was tragically cut short; all of the others became leaders in private practice, their names perhaps not recognized by the general public but known and honored by the bar.¹ And their youth was for Stimson an advantage and a pleasure. They were able, eager, and loyal, and they were happy to be overworked. They would work in the evenings through the week, and come down to Highhold for the week end in relentless zest for the labor of winning cases for the United States. They were gay, too, and in 1947 Stimson remembered with delight the day when he had seen a future Supreme Court Justice in a losing foot race around the fields of Highhold against a future judge in the New York Court of Appeals.

In later years, when the success of his term as United States Attorney was laid at his door in public and private tributes, Stimson always felt that he could properly accept the credit for choosing these young men, but he always added that the direct honor for cases won was mainly theirs: For the first few months of my administration I was busy explaining the responsibilities, the duties, and high function of that office to all of the young men of the City of New York who would listen to me. The response that I then found . . . was one of the most inspiring lessons in public spirit and optimism that I have had the happiness to experience; and . . . [It is the] devoted work of those men and that spirit brought with the office to which is due whatever credit and whatever success it has attained.²

The first great group of cases which Stimson brought to trial were prosecutions for the offense of rebating. The railroad rebate was an extraordinary device; it had played a major role in the development of gigantic near monopolies. The idea was simple: a large corporation shipping its goods by rail could use its bargaining power as a major customer to force reimbursement of a part of the legal shipping rates charged by the railroad, thus obtaining an advantage over competitors. This reimbursement was called a rebate. In particularly flagrant cases like that of the Standard Oil Company, the big shipper received in addition a rebate on the shipping rates paid by his competitors.

Rebates had been criminal for many years before 1903, but the Elkins Act of that year was the first to give effective weapons to Government prosecutors. Under the Elkins Act, the size of permissible fines was greatly increased, and the shipper as well as the railroad could be prosecuted. The power to impose large fines on the offending corporation was most important, for juries were much more willing to penalize the profiting corporations than to put unhappy corporation underlings in jail while the corporate profiteers went untouched. But before February, 1906, there had been no successful prosecution for rebating.

The first evidence for Stimson’s own prosecutions came from the offices of William Randolph Hearst late in 1905; Hearst’s peculiar compound of policies at this time included a lively opposition to the Interests, and his reporters were good sleuths. The new United States Attorney followed up Hearst’s leads with energy; within five months he had brought seven indictments, and in the following year his office brought fourteen more. By the time he made his first personal report to the Attorney General, in July, 1907, a total of $362,000 had been assessed in fines for rebating, and it had become customary for defendants to plead guilty in order to avoid the painful publicity of trial and certain conviction.

Stimson’s most important rebating prosecutions were against the American Sugar Refining Company and railroads from which it had received rebates. These cases were a remarkable illustration to him of the problems involved in prosecuting big corporations. In the first place, the volume and complexity of the evidence was almost overwhelming; it was necessary to unravel the freight transactions in which the rebate was artfully embedded, and then to reconstruct what actually happened in a manner clear and convincing to the jury. This could be done with assurance only after such an amount of study that Stimson and his assistants in the end were more familiar with these transactions than the officers of the offending corporations.

These cases also demonstrated with remarkable clarity both the stubbornness and the eventual weakness of the corporate wrongdoer. The New York Central Railroad and the American Sugar Refining Company had been partners in rebating, as Stimson proved in three successive jury trials. The Railroad carried its case on through the Supreme Court, as if persuaded that such unwonted misfortune in the federal courts must be an accident. The Sugar Company, on the other hand, fought only one case and then surrendered without a trial on the remaining indictments. The eminent lawyer who was counsel for the company came to Stimson’s office bearing a white flag: ‘Damn it, Stimson, we think you’re wrong on the law and wrong on the facts, but we can’t stand the publicity.’ Yet this same lawyer had no complaint whatever against the fairness and sobriety of the Government’s prosecutions. It was not publicity in itself that he feared; it was public proof of guilt.

The victory thus won showed the wisdom of Elihu Root’s advice to Stimson after his first successful trial. The way to stop rebating for good, Root said, was to keep on hitting until the railroads and the shippers understood that they could and would be punished in the courts for their offenses. Stimson’s successful prosecutions, followed by others in other federal districts, put a stop to rebating as a major corporate practice in a very few years. In one of the later prosecutions a fine of fantastic size was imposed—$29,000,000 assessed by Kenesaw Mountain Landis in Chicago against the Standard Oil Company. Unlike the more modest fines imposed by the judges before whom Stimson argued, this great judgment was promptly reversed by a higher court.

From the standpoint of their broad effect on the conduct of business, the rebating cases were probably the most important in Stimson’s service as United States Attorney. But there were two other main undertakings which were even more demanding in their preparation and presentation, both of them striking examples of the kind of battle for simple morality in high places which was typical of so much of Theodore Roosevelt’s era.

One was the prosecution of Charles W. Morse for misusing the funds of the Bank of North America. Morse’s activities were a major element in bringing on the financial panic of 1907, and he was an object of public wrath long before any indictment was found. Morse had concealed his misapplication of bank funds by fictitious loans to dummies of no responsibility; the difficulty was to show that what was to all appearances a real loan was in fact a misapplication of the funds of the bank to a speculation by Morse himself and that the form of a loan had been adopted to deceive the bank examiners. Nor was this case made easier by the fact that Morse, the primary culprit, was not himself the president of the bank. The case was more than a year in preparation, and Stimson made every effort to exclude from the trial the sort of atmosphere of indiscriminate vengeance which malefactors of great wealth so easily arouse against themselves. Morse was duly convicted and sentenced to fifteen years in the penitentiary; but it was typical of the plausible deceitfulness of the man that three years later he was pardoned on the ground of ill health—and lived on long enough to have a further brush with the law.

The second big case—or rather set of cases—in the later years was one to which Stimson always referred as The Case of the Seventeen Holes. This was a case of customs fraud on a grand scale, and it eventually resulted in a recovery by the Government of about $3,500,000 in back duties. The principal defendant was, once again, the American Sugar Refining Company, this time accompanied by other sugar refiners.

The Case of the Seventeen Holes was an astonishing illustration of the level to which business ethics had fallen in this period. As the defense counsel summed it up, The charge is that over a series of years the American Sugar Refining Company of New York has been systematically, in season and out of season, from 1901 down until the close of 1907, engaged in stealing from the United States.³ This had been done by fraudulent weighing of sugar for the determination of custom duties, and the method of the fraud gave the case its name. In seventeen large Government scales, through seventeen small holes, the company’s checkers had systematically and furtively introduced wires by which they distorted the weights recorded by these scales; the result was that the company, in season and out of season, had paid duty on less sugar than it actually imported.

Stimson spent the better part of two years of his life on these customs cases. The system of the seventeen holes was uncovered by a federal agent named Richard Parr at the end of 1907, but the first good jury evidence of fraud was obtained only after an exhaustive study of the company’s records demonstrated a marked and continuing difference between the amount of sugar sold by the company and the amount on which it paid duty. After a year of preparation the first case, a civil suit, was started for recovery of duty on a small number of specified bales of sugar. Stimson’s object here was simply to fix the fact of fraud by the corporation, and the verdict for the Government was wholly effective to this end; only $134,000 was recovered by this verdict, but the evidence of corrupt conspiracy was so damning that rather than face further trial, the American Sugar Refining Company promptly paid $2,000,000 in back duties, and over $1,300,000 more was paid by other guilty refiners.

Criminal prosecution of the guilty individuals was more difficult. The evidence available was sufficient for the indictment and conviction of the men on the docks, the tools of the company, and a number of these men were duly tried and sentenced, as were a number of conniving Government employees. It was much harder to bring home the crime to the company’s senior officers. But as Stimson reported to the Attorney General, Our evidence indicates that this company down to minute details, was virtually run by one man, the president; the president died only two weeks after Parr’s first discovery of fraud and so escaped prosecution, but the next senior officer connected with the operation, the secretary-treasurer of the company, was duly convicted.

Stimson resigned as United States Attorney in April, 1909, but he continued to act as a special assistant to the Attorney General in the customs cases for more than a year thereafter. The sum of what he and his assistants learned was set forth in a report which shows how badly the clean breezes set loose by Theodore Roosevelt had been needed—and it should be noted that the frauds of the customs-house were not a subject of notorious exposés when Stimson entered office; in his first annual report he had treated customs cases as routine affairs deserving little attention. By 1910 both he and the public had learned better:

"The foregoing investigation had made clear to me the following points:

"First: That in the administration of the Customs service in this Port, there has been widespread fraud and corruption among both the importers and the Customs officers.

"Second: That this is not the result of the malfeasance of any one officer or administration, but is the result of a lax system during the twenty years covered by our investigation, and probably going back very much further, in which not only the administrative officers, but the laws, regulations and traditions of the service were at fault.

"Third: That in spite of the abundant resources which have been placed at our disposal, and of our own unceasing efforts for a year, it seems likely that a comparatively small number of the persons legally or morally guilty can be visited with suitable punishment through the process of the criminal law. . . .

We have found that local politics have continually had a debasing effect upon the Customs service; that the large sugar refiners have been able to exert great political influence upon Customs officers; that some of the local party organizations have been able to exercise a strong influence upon the course of investigations, and even of prosecutions, through their power over investigators and witnesses. We have found instances of Government agents reporting, many years ago, abuses which were left unpunished until our prosecutions. Years ago, the American Sugar Refining Company was caught using light trucks on its scales in the weighing of its sugar. Later, its employees were found tampering with the scale beam. So far as I can find, nothing was done to remedy this, except to supply Government trucks and to board up the scales. Not a man was prosecuted, nor were the employees of the Sugar Company even refused access to the scales.⁴

The frauds themselves were bad, but this callous indifference to the law and the interests of the United States was even worse, and, having gone as far as he could with punishment under the law, Stimson recommended a further course of action, one which was to him a course of last resort, only to be used when there was no longer any possibility of remedy in the courts:

"I believe, therefore, that there is great need in this matter for the ‘punishment of publicity.’ . . . I believe . . . that a thorough ventilation of the administration of the Custom House would greatly assist the efforts of those officials who are trying now to reform it. It is difficult for a stranger to have any notion of the way in which this system of graft has entered into the conception of all of the subordinates of this service, or how they have stood together in their defense of it. Almost all of the [Government’s] weighers have taken money, and even men otherwise right-minded will vigorously defend the ethics of ‘house money.’ Such a situation needs the tonic of public indignation to set it right.

For this reason, it is my view that as soon as the executive has finished its work; as soon as all the indictments which can be found through the ordinary resources of the criminal law have been found . . . and before public interest in the scandal has so subsided that the opportunity is lost, a public investigation of the situation should be made, and the facts now held under ban of secrecy made a matter of public record.⁴

It is important to observe that this was emphatically not an effort to influence public opinion before indictment and trial. Stimson could fairly claim that he never tried his cases in the press; his steady refusal to encourage headlines before trial had indeed won him a reputation for chilly austerity among New York reporters. The principle here asserted was the quite different one that known wrongdoing must be stamped as wrong by public opinion; men whose moral sense had been blunted must be made to understand how their actions looked to the people; the hand of the hard-pressed reformer must be upheld by informed opinion. Public reports of known facts were a fully justified and indeed indispensable weapon to this end.

And Stimson’s repugnance to sensational reports before trial did not extend to any feeling that proper court proceedings should go unreported. A year before, the first trial and conviction of the American Sugar Refining Company for custom fraud had gone almost completely unnoticed in the press. Stimson would have expected the silent treatment from the Herald of James Gordon Bennett; he had prosecuted Bennett for indecency in his personal columns and collected a $25,000 fine. He would have expected it from Joseph Pulitzer’s World; he had brought an indictment for criminal libel against Pulitzer at T.R.’s request. But the general reticence of the press in the face of a trial whose implications went so deep was extremely disturbing, and he had turned on March 8, 1909, to Editor Roosevelt of the Outlook for a redress of the balance. T.R. was delighted to help, and The Case of the Seventeen Holes was fully and accurately reported in his weekly on May 1; subsequent developments received generous space in the New York dailies.

Stimson did not keep in close touch with the customs service after 1910, but he always believed that the great fraud trials of 1909 and 1910 marked a turning point in the ethics of federal law enforcement on the docks. And, at least among customs officials, his own fame persisted. He and Mrs. Stimson traveled repeatedly to Europe in later years. On their return to New York they were invariably hustled through the customs with gingerly respect.

On April 1, 1909, Stimson resigned his office. He had served for more than three years, and it was time to return to private practice; although $10,000 a year, in the days before income tax, was a fair salary for a federal officer, it was less than half of what he had earned before, and he was feeling the pinch. And in a sense the most interesting part of his job was done. The office had been reorganized, and a new standard of effectiveness was soundly established. If he were to retain his standing as a member of the New York bar, he must sooner or later return to private practice, and this seemed a suitable time.

On May 20, in a gesture as unusual as it was heart-warming, the leaders of the New York bar tendered to Stimson a dinner, and during the after-dinner speeches they bestowed their praises with a lavish hand. Yet because this was praise from stern judges, and because it came from the men whose good opinion he most coveted, and most of all because it came from men who might have been expected to resent and belittle his activities against great corporations, Stimson believed that parts of these speeches might be taken, with appropriate discount, as a fair summary of his achievement. At the least, they may serve to show how fortunate he had been in winning the kind of reputation he desired:

"Nor is there time to refer to the many important litigated cases which Stimson directed, or in which he was personally engaged. He had to deal with difficult and complicated questions of law and fact. He had to solve the difficult riddles which Congress is constantly framing in the form of statutes. He had to investigate the involved accounts of great railroad systems and complex banking transactions. He had to uncover new and subtle schemes for concealing violations and evasions of the law. He was unaided by senior counsel. Single-handed, he was constantly opposed to the veterans of the bar. And he was almost uniformly successful, not only in obtaining verdicts and judgments, but in holding them. Among his adversaries were Mr. Choate, the leader of the American bar, Judge Wallace, Judge Parker, Judge Choate, Senator Spooner, John E. Parsons, John G. Milburn, Austen Fox, DeLancey Nicoll, John M. Bowers, Wallace Macfarlane, Congressman Littlefield, John B. Stanchfield. . . .

Above all other considerations, it should be appreciated that in all this conspicuous and successful work, there was no bravado or parade or bombast, no press interviews, no calling the newspapermen together and communicating to them the plans and exploits of his office, no beating of kettledrums, no eager straining after notoriety and applause, no exhibitions of vanity and conceit, no interjection of his own personality; only the plain, quiet, unostentatious, faithful, and impartial performance of his duty as he understood it. Truly may he be said to have redeemed the administration of justice by the federal authorities from the reproach and contempt into which it was falling, and vindicated and upheld the supremacy of the law. He showed how justice could be effectively and impartially administered by gentlemanly and dignified methods.⁵

And from the leading lawyer of New York, Joseph H. Choate, who presided at the dinner, came a still more ringing tribute:

It has been the good fortune of Mr. Stimson during the last three years to hold that office when it was charged with the severest responsibilities, the most onerous duties, and the most complex difficulties that I think have ever surrounded any law office in the United States. Here center the great interests of the nation, and the cases that have come into his hands for presentation and argument have been of the utmost importance. I have observed with great interest his self-reliance, his courage, his absolutely perfect preparation, and that tenacity of purpose which distinguishes all the great lawyers that I have ever known . . . and you will bear me witness that he has always held his own against [the leaders of the bar] and has never been charged with anything oppressive, or brutal, or cruel, which so often pertains to the office of prosecuting officer.

Stimson’s success as United States Attorney is an important factor in his later career; it gave him his first public reputation and opened the door to immediate and striking opportunities. But it is not the cases tried, or the reputation won, that is most important for our purpose. It is rather the effect of his experience on Stimson’s own attitudes. This was his first public office, and it was a case of love at first sight, as Mrs. Stimson often smilingly complained in later years. How it struck him is best revealed in the report of his twentieth Yale reunion in 1908. Talking to his classmates, in the intimate informality of a small group of lifelong friends, he explained what it meant to him to become attorney for the United States:

The last two years of my life have represented a complete change in my professional career. The profession of the law was never thoroughly satisfactory to me, simply because the life of the ordinary New York lawyer is primarily and essentially devoted to the making of money—and not always successfully so. There are some opportunities to do good in it. . . . [But] it has always seemed to me, in the law, from what I have seen of it, that wherever the public interest has come into conflict with private interests, private interest was more adequately represented than the public interest. Whenever a great public question has come up, in which there has been a rich corporation on one side and only the people on the other, it has seemed to me that the former always had the ablest and most successful lawyer to defend it, and very often the side of the people seemed to go almost by default. I have found comparatively few successful lawyers, in modern times, putting their shoulders to the public wheel. . . . My private practice, up to the last three years, brought me constantly into contact with the side of the corporation, and the office I was in constantly represented the larger corporations of New York. And, therefore, when I was taken, as you might say, by the back of the neck, and started out without anticipating it and without expecting it, and turned loose with nothing but my oath of office to guide me, the first feeling was that I had gotten out of the dark places where I had been wandering all my life, and got out where I could see the stars and get my bearings once more; and there has been, during those two years, a feeling that the work I was doing amounted to a little bit, or would amount to something if I put my whole heart into it and did it thoroughly. And it has made a tremendous difference and a tremendous change in the satisfaction of my professional life. There has been an ethical side of it which has been of more interest to me, and I have felt that I could get a good deal closer to the problems of life than I ever did before, and felt that the work was a good deal more worth while. And one always feels better when he feels that he is working in a good cause.

¹ On a loving cup presented to Stimson by his staff when he retired in 1909 the following names appear: D. Frank Lloyd, Henry A. Wise, J. Osgood Nichols, Winfred T. Denison, Goldthwaite H. Dorr, Felix Frankfurter, Hugh Govern, Jr., Francis W. Bird, Emory R. Buckner, William S. Ball, John W. H. Crim, Thomas D. Thacher, Daniel D. Walton, Harold S. Deming, Robert P. Stephenson, Wolcott H. Pitkin, Jr.

² Speech as guest of honor at a testimonial dinner of the New York bar, May 20, 1900.

³ Quoted in the Outlook, May 1, 1909.

⁴ Report to the President, April 20, 1910.

⁵ Remarks of William D. Guthrie.

CHAPTER II

With Roosevelt and Taft

STIMSON’S years as United States Attorney made him one of the trusted lieutenants of the Roosevelt administration, and he found the end of T.R.’s term an emotional and somewhat saddening time. He went to Washington for the famous farewell luncheon of the Tennis Cabinet, and when the Colonel sailed for Africa, Stimson was happy to have been chosen to act as his agent at home in a number of small personal matters. The good fight continued, for Stimson at least, in the new administration. For the next year and a half he was largely occupied with the completion of his customs cases, and he received from President Taft and Attorney General Wickersham exactly the same wholehearted support that he had become used to with President Roosevelt and Attorneys General Moody and Bonaparte.

In the three years that followed the inauguration of Mr. Taft, the controlling factor in American political life was the fluctuating relationship between the ex-President and the President. In the end, in 1912, the two men became open enemies, and the Republican party was split down the middle. To Stimson this result was both unnecessary and catastrophic. Throughout the three-year period before the break he was active in politics, and his weight was continuously thrown in favor of party and personal harmony. As a result of the events of those years he was twice selected for important assignments, once by Mr. Roosevelt and once by Mr. Taft. As a loyal admirer of both men, he refused to believe, then or later, that their differences were irreconcilable. Almost until the end, he hoped for peace and party unity. Almost from the beginning, the current ran against his hopes.

In June, 1910, when T.R. returned in triumph from his African expedition and his grand tour of Europe, the situation was already difficult. Mr. Taft had been nominated and elected as the direct heir of Mr. Roosevelt. The comradeship and affection between the two men had been famous for many years, and in T.R.’s Cabinet, Secretary of War Taft had been in many ways an assistant President. In 1908, in their explicit policies and principles, the two men were indistinguishable; as a candidate Mr. Taft repeatedly announced that his whole program and purpose was the consolidation of the Roosevelt policies. But in the first year of his term there arose two serious issues that served to alienate many progressive Republicans who idolized Colonel Roosevelt.

One was the tariff. In later years Stimson came to believe that tariff revision was full of danger for all Republican presidents who dared to face it; with the best will in the world, no Republican seemed able to stave off the logrolling of special interests. In 1909, after pledging his support to tariff reduction, Mr. Taft finally signed the notorious Payne-Aldrich tariff, whose extensive rate increases had been ruthlessly exposed by progressive Senate Republicans. And what happened to Mr. Taft in 1909 was to happen to Mr. Hoover in 1930. Both times it was hoped that this logrolling orgy would be the last one, and both Presidents set much store by their success in setting up executive tariff commissions to establish the basis for a sensible tariff. But both times their hopes proved unfounded. Both times the new and higher tariff promptly became highly unpopular throughout the country, and in both cases the presidents concerned were reduced to defensive claims that the measures might have been worse. The guilt for the tariff increases in fact belonged to Republicans and Democrats, East and West alike, but in both cases these increases became a major cause of dissension within the Republican party, and of organized insurgency against the President.

In 1909 Stimson had no part in the tariff agitation; but in the other main issue between Taft and the Republican progressives he was for a time closely concerned. The famous Ballinger-Pinchot controversy remains today a matter of debate among public men and historians, some holding that Secretary of the Interior Ballinger was greatly wronged, and others that only the prompt and energetic public opposition of Gifford Pinchot and his young friend Louis R. Glavis prevented a disastrous reversal of the conservation policies of Theodore Roosevelt. What is not a matter of doubt is that the controversy made a permanent break between President Taft and the more emotional progressives.

Stimson’s own sympathies in the Ballinger-Pinchot affair were with Pinchot, who was a lifelong friend. He was consulted by Pinchot and was instrumental in the selection of Mr. George W. Pepper to represent Pinchot before the congressional committee which ultimately heard the issues between Ballinger and Pinchot. In the early preparation of the case he also met and became friendly with Louis D. Brandeis, who was retained by Collier’s magazine to show that its accusations against Ballinger were justified. The majority report of the committee cleared Ballinger of malfeasance, but the general public reaction was unfavorable to the Taft administration. Stimson, however, did not share in the antiadministration sentiment thus stirred up.

The Payne-Aldrich tariff and the Ballinger-Pinchot case, in combination with a number of smaller incidents rising out of Mr. Taft’s temperamental aversion to Western progressives, had laid the groundwork for a split in the Republican party by the time T.R. arrived from Europe. The ex-President’s warm affection for Mr. Taft had already cooled considerably; real or fancied slights were almost inevitable in the changed relationship of the two men. T.R.’s silence about the Taft administration was complete, but he listened, at Oyster Bay, to a series of Republicans of all stripes. His intimate friend Henry Cabot Lodge and his son-in-law Nicholas Longworth came to argue the case of the Republican regulars. Pinchot and James Garfield came to explain to their beloved chief how his policies had been betrayed; Pinchot had already told his story once, in a quick trip to Egypt. And Stimson came—as Root already had in London—to urge the Colonel not to get into the internecine party strife, but to bide his time and avoid a split with Taft. So far as Stimson could see at this time, it was this middle-of-the-road advice that accorded with T.R.’s own views.

Meanwhile there was trouble brewing nearer home, in New York; and this nearer trouble was to bring Theodore Roosevelt and Stimson closer together than ever before.

1. RUNNING FOR GOVERNOR

The Governor of New York in 1910 was Charles Evans Hughes, whose investigation of insurance companies had led to his nomination in 1906. In four years of campaigning and administration Hughes had won a nation-wide reputation as a first-rate leader and executive; he had demonstrated the power of an aggressive governor to force reform by the pressure of public opinion. In so doing, however, he had earned the violent opposition of regular politicians in his own party. In April, 1910, by his acceptance of appointment to the United States Supreme Court, he lost his greatest political weapon, for his approaching withdrawal from New York politics to the Court left him with no chance to use his great popularity as a threat against the machine. At the same time, in an effort to complete his reform program, Hughes was heavily engaged in a battle for the direct primary—a measure feared and hated by machine politicians. At the Harvard Commencement late in June he urged T.R. to pitch in and help. Theodore Roosevelt was not the man to run away from a fight; the direct primary was a cause he believed in, and his support was promptly and publicly given to Hughes’s bill. Almost as promptly the bill was defeated, and T.R. chose to consider that he must fight to the bitter end for a victory over the forces of evil. The scene of battle shifted to the forthcoming September convention of the Republican party at Saratoga, where a platform and a candidate would be adopted for the gubernatorial election in November. At this point Stimson was drawn into the matter. He had been mentioned as a possible candidate for Governor even before Colonel Roosevelt’s return, and in the middle of June at Sagamore Hill T.R. himself had remarked to Stimson that he would be the best Governor, though not the best candidate.

July and August Stimson spent on vacation in Europe; when he returned, the Colonel was in the West, making the series of speeches which defined his New Nationalism in terms as terrifying to conservatives as they were heartening to the insurgents. Stimson wrote congratulating his friend and leader on the famous Osawatomie speech, the most terrifying of the lot. At the same time, true to his continuing conviction that a split with Mr. Taft would be catastrophic, he urged the Colonel to speak as warmly as possible about the Washington administration. The reason for this position is important, for it is central to Stimson’s political thinking:

"I was much pleased that you enumerated a definite and constructive radical platform at Osawatomie.

The only thing I wished to say particularly is that it seems to me vitally important that the reform should go in the way of a regeneration of the Republican party and not by the formation of a new party. To me it seems vitally important that the Republican party, which contains, generally speaking, the richer and more intelligent citizens of the country, should take the lead in reform and not drift into a reactionary position. If, instead, the leadership should fall into the hands of either an independent party or a party composed, like the Democrats, largely of foreign elements and the classes which will immediately benefit by the reform, and if the solid business Republicans should drift into new obstruction, I fear the necessary changes could hardly be accomplished without much excitement and possibly violence. . . . I think the attempt to reform the Republican party can be made successful and that that should be the aim. . . . I have heard . . . that even in advocating certain policies supported by Taft you studiously avoid his name. I have denied that there could have been any such purpose. But it seems to me that if you could avoid this criticism it would go a long way in the direction above mentioned. It would emphasize the continuity of the reform inside the Republican party, of which Taft is now the official head.¹ Colonel Roosevelt did not answer this letter directly, but in conversations on Long Island during September Stimson found no reason to believe that his advice was unacceptable.

The immediate problem was in New York. Although Stimson had originally hoped that T.R. would stay out of the battle in the state, he supported Colonel Roosevelt’s campaign for election as temporary chairman of the Saratoga convention. The issue in New York was to him essentially the same as in the nation—it was a battle to win the Republican party to the cause of reform. The objection to fighting it in September, 1910, was tactical; Republican machine opposition to the direct primary, together with some unsavory political scandals of the previous winter in Albany, added to the evident trend away from the party in power throughout the country, made a defeat in November seem inevitable—for any Republican. This objection did not disturb Stimson for himself—he was not impressed by the talk of his availability as a candidate—but he hated to see the ex-President hazard his great name and invaluable prestige in a losing fight. Only after the Colonel had by his own decision become the leader of the fight did Stimson enlist as his ardent supporter—there was then no other possible course. The object of the battle was now a simple one—to elect Theodore Roosevelt as temporary chairman at Saratoga over the machine candidate, a personally estimable stand-pat conservative who was also the Vice President of the United States. Vice President Sherman was not openly endorsed by President Taft, but there was clearly tension in Washington as the battle developed.

The Saratoga convention was to open on September 27. Well before that date, it became clear to the reformers that Roosevelt was probably going to win his fight; speculation turned to the question of his choice of a candidate for Governor, and Stimson’s name came forward more prominently than before—he was known as one of T.R.’s particular protégés in New York. So on September 24 Stimson raised the subject with the Colonel:

I told him that during the last day or two hints had come to me indicating that the New York [city] leaders felt that I was probably going to be the candidate, and I wanted to warn him particularly against my candidacy as affecting his own prestige and leadership in the country. I said to him, ‘If I run and am defeated, as looks now almost certain, it will be made a defeat for you. Our relations have been so close that I will be taken to be your personal candidate, and when I am defeated it will be used to injure your leadership.’ He said, ‘I have considered all that. So far as my own personal position is concerned I do not care in the least. I should be proud to go down fighting for you. On the other hand, I do realize the disadvantage and the chance for attack which lies in our close association. For that reason I have felt that an upstate man should be chosen. But the trouble is that there is no one who measures up to the situation. We cannot put up a man of whom it will be said that we put him up to be defeated. We believe we are fighting for a big issue, and to do a thing like that would stultify us at once. I am still trying to find a good upstate man.’ ²

At Saratoga on the twenty-sixth the matter came up again, in a meeting between Colonel Roosevelt, Elihu Root, and Stimson. As Stimson recalled it, Root said . . . , ‘Isn’t there some way we can keep Harry out of this? I hate to have him sacrificed.’ Roosevelt then said, ‘So do I; but I have the feeling that with a good fight a licking won’t necessarily hurt him.’ Then Root said, ‘That might be so if it wasn’t too bad a licking; but I am afraid we are in for a terrible licking, and then it will be different. I think the country has made up its mind to change parties. It is like a man in bed. He wants to roll over. He doesn’t know why he wants to roll over, but he just does; and he’ll do it.’ Roosevelt said, ‘That’s so. I think you are right.’ ³ Either that evening or twenty-four hours later Stimson had a further long talk alone with Root, discussing the conditions under which it would or would not be my duty to run; Stimson and Root agreed that if the party leaders on the reform side thought Stimson their best candidate, he should accept the nomination. But his own preference was strongly against running, and he would make no effort whatever to win support. On this understanding Stimson left the matter in the hands of his oldest counselor and guide. On the twenty-seventh T.R. was triumphantly elected as temporary chairman, and that night, in a hotel room very probably smoke-filled, he and his colleagues in the battle against reaction met for several hours; Stimson, waiting outside, went to bed. Some time after midnight he was awakened and told that he was the choice of the reform leaders as candidate for Governor. To put it bluntly, he was T.R.’s handpicked candidate, selected as the best man to run with credit in a losing cause. But it was his cause as well as the Colonel’s, and he cheerfully accepted the nomination. Like almost every other candidate in history, he promptly forgot his gloomy forebodings of the week before and set out to win, with the energetic support of the greatest campaigner of the time, his friend and leader Theodore Roosevelt. At the worst, it would be a good fight.

Nothing about the campaign of 1910 in New York was so important for Stimson’s life as the simple fact that he did not win. The defeat did not do him any important damage, but victory would almost surely have opened to him a strong possibility of great advancement, even toward the White House. At the least it would have made him a commanding national figure at a very early age. And possibly—this was the thought that struck him with particular force in 1947—his victory, which would have been T.R.’s victory too, might have served to sustain that great leader in his original inclination to work out the New Nationalism within the Republican party. But Stimson and Colonel Roosevelt did not win.

The principal and overriding reason for their defeat was that mysterious but evident tendency which Elihu Root had described in September—every so often the people decide to roll over. The political ineptness of Mr. Taft, as shown in the Payne-Aldrich tariff and the Ballinger-Pinchot controversy, certainly contributed; the dubious conduct of the machine Republicans in Albany contributed more; the high cost of living was a major issue, and it was quite useless for Stimson to point out, as he repeatedly did, that the Governor of New York State had no influence whatever on this item. In November, 1910, the people rolled over, and it was small consolation that in New York they rolled less far than in most other states.

The campaign in New York was fought on very few issues. The Republicans fought for a continuation of the Hughes policies and against Tammany control. The Democrats—and many conservative Republicans—fought against T.R. Over and over again they argued that Stimson for Governor in 1910 meant Roosevelt for President in 1912. When they wearied of this chant, the Democrats would unconcernedly blame the Republicans of New York for all the failures of the Taft administration, and then they would discourse on the extravagance of Governor Hughes, promising meanwhile to extend the benefits which Hughes had instituted at some public expense. It was not, on the Democratic side, a brilliant campaign. The Democrats knew perfectly well that they were going to win, and their candidate, an honorable papermaker named John A. Dix, who later proved almost as subservient to Tammany as Stimson foretold in his speeches, conducted a front-porch campaign, safe, dignified, and not talkative.

Meanwhile Stimson was trying to make up by energy what he lacked in experience. He had rung doorbells and helped to organize the vote in a single Assembly district, but a state-wide campaign was wholly new to him, and the arts of the campaign speaker were not his natural forte. Years later Felix Frankfurter, who traveled with Stimson in his special train as brain trust and factotum, could recall the high-pitched but friendly scolding of T.R., ‘Darn it, Harry, a campaign speech is a poster, not an etching!’ But in four weeks of ceaseless speechmaking, six or seven times a day, Stimson gradually improved. If he lacked the explosive and contagious enthusiasm of T.R. and perhaps also the experience and skill of Hughes, he was nevertheless, he always insisted, a reasonably competent campaigner. His principal problem was to prove by personal force that he was not just Theodore Roosevelt’s puppet, and he gradually developed a glowing paragraph which seldom failed to win applause. These were the days before the radio, when one good speech with variations would last for most of a campaign, and the following apostrophe, taken from a speech delivered at Amsterdam, is typical of dozens very much like it: My opponents have been shouting through the state one argument against me . . . they say you must not vote for Stimson because he is Roosevelt’s man [prolonged applause]. . . . If they mean when they say that that I admire the standards of courage and integrity and civic righteousness which Theodore Roosevelt has shown for thirty years [applause], if they mean that, why then I am frank to say that I am Roosevelt’s man and I am proud of it [applause]. But if they mean something else, if they mean something very different, if they mean that if you should elect me Governor of this state I would administer this great office according to any other suggestion or any other dictation than my own will and my own oath of office, why then I say to you that I am not only not Mr. Roosevelt’s man but I am not any man’s man [applause] and I think you will find that Colonel Roosevelt, from his experience with me as District Attorney when he was President, will be the first one to tell you so [applause].

Many of Stimson’s friends argued that Colonel Roosevelt’s energetic help was doing him more harm than good. Stimson wholly disagreed. It was true that Roosevelt-haters in New York City were giving their money to the Democrats; it was true that Stimson’s father no longer found it pleasant to visit his club because so many of the members were rabid about the socialist Roosevelt and his tool Stimson; it was true that the daily press of New York City, with two exceptions, was opposed to Stimson because he was Mr. Roosevelt’s friend. All these considerations together did not outweigh the magic of T.R.’s appeal to the ordinary voter. Before the Saratoga convention Stimson heard a wise professional politician estimate that the Republicans would lose in November by 300,000 votes; the difference between this gloomy forecast and the actual margin of 66,000 he thought mainly attributable to the campaigning of Theodore Roosevelt.

The real source of damage within the party, as Stimson saw it, was not Mr. Roosevelt but the regular Republican machine. The battle of Saratoga ended with a closing of ranks on the part of such regulars as James Wadsworth and Job Hedges, but there were others who did not so readily forgive. Stimson’s zealous and devoted friends among the younger Republicans did what they could to organize and manage his campaign, but many of the professionals on whom they relied were cool and distant. And many Republicans in the Washington administration felt that a Stimson victory would be of no value to Mr. Taft. The President himself was cordial in his public support, but he would have been more than human if he had not felt that victory in New York was less important than victory in states where T.R. was not so active.

At the same time, oddly enough, the more ardent progressives were temporarily annoyed at both Stimson and Colonel Roosevelt for compromising with the regulars. The Saratoga platform contained a hearty endorsement of the Taft administration, and both Stimson and the Colonel treated their fight as part of the general Republican cause. Gifford Pinchot’s personal loyalty was great enough to bring him to an offer of speech-making support, but he coupled his offer with a warning that he must be free to attack President Taft, and Stimson did not accept his help. So hard it was already, in 1910, even in a state election, to keep party harmony among the deeply divided Republicans.

But it was an energetic campaign, and Stimson enjoyed it. He knew his cause was good; he had nothing to lose; he was proud of both his friends and his enemies. When the election returns rolled in and he realized he was beaten, he found himself undismayed. He promptly congratulated Governor-elect Dix and announced his conviction that the fight for progressive policies had just begun. The defeat of 1910 was a setback, but not a major disaster. The major disaster lay ahead, but the main immediate effect of the campaign on Stimson himself was that it gave him within six months a new and unexpected opportunity for service. In spite of his eloquence, he was marked as Roosevelt’s man, and as such he had acquired a particular value for William Howard Taft.

2. SECRETARY OF WAR

In the spring of 1911 President Taft accepted the resignation of Secretary of War Jacob Dickinson, who wished to give more attention to his private affairs. Casting about for a new Secretary, he was bound to consider the internal condition of the Republican party. He knew that the old personal affection between himself and Theodore Roosevelt was dead; both had done thoughtless things and spoken incautiously among friends, and partisans of both had been unkindly quick to kindle the consuming fires of mutual mistrust. But the end of a friendship was not the same thing as the destruction of the party. T.R. had greatly disturbed the President with his speeches in the summer of 1910, but during the campaign in the autumn he had been less of a maverick, and after the election Oyster Bay became very quiet indeed. The President wanted nothing so much as assurance that Colonel Roosevelt would stay out of the 1912 campaign; one way to attain this result might be to disarm the Colonel’s criticism by bringing into the administration some men of his type. When Secretary Ballinger resigned in March, 1911, Mr. Taft appointed Walter L. Fisher, a distinguished conservationist, to be Secretary of the Interior, and in May, against the advice of conservatives in the Cabinet, he offered the job of Secretary of War to Stimson.

"The first intimation that I received that my name was being considered for appointment came through Senator Root. He asked me to meet him uptown in New York; he told me that Mr. Dickinson was about to resign and that my name was under consideration by the President. I think that this was on Monday, May 8th. I asked him his advice and he advised me to accept the appointment. . . . I think on Wednesday night, I